Digital Commons Network^™

Life, Liberty, And Freedom From Non-Consensual Pelvic Exams?, Michaela Cotton

William & Mary Bill of Rights Journal

[T]here is a need for the federal government to intervene and finally ban the practice of performing non-consensual pelvic exams, and it can do so under the Due Process Clause of the Fourteenth Amendment, which guarantees the right to refuse involuntary medical treatment. Part I will provide a brief overview of pelvic exams and informed consent; Part II draws on policy considerations for banning this practice and tackles counter-arguments; Part III will discuss the relevant federal law and case precedent; Part IV demonstrates how federal law applies to non-consensual pelvic exams; and, finally, Part V will further explain the need …

Balancing Tradition And Inclusion: Framework Principles For An Afghan Accord, M. Hamed Isar

William & Mary Bill of Rights Journal

This Article examines the turbulent constitutional history of Afghanistan and proposes a pragmatic constitutional framework balancing Islamic principles with rights, protections, and constraints on power. After analyzing the Taliban’s current extraconstitutional rule and ideological objections to an inclusive order, it makes the case for principled compromise. The first step to constitutional reform for Afghanistan is to recognize that Afghans, the Taliban, and the international community pay a high price for disregarding law and accountability in governance. To that end, this Article canvasses the many factors that could motivate the Taliban to accept the rule of law, despite the constraints it …

Excluded But Equal, Gali Racabi

William & Mary Bill of Rights Journal

Work law is excessively exclusionary. Canonical examples include agriculture workers, independent contractors, and domestic workers. But work law excludes far more workers and employers than those familiar categories. Whole sectors, occupations, business sizes, wage arrangements, geographical areas, and more are excluded from the basic tenets of economic citizenship, including federal, state, and local minimum wage; overtime; and safety and labor protection laws.

Equal protection claims govern the authority of legislatures to determine who is in and who is out of work laws. Excluded workers and included employers now routinely use state and federal constitutional equal protection arguments against exclusionary work …

The First Amendment In Education: May Faculty At Public Schools Be Disciplined For Political Hate Speech?, Ken M. Levy

William & Mary Bill of Rights Journal

At a House hearing on December 5, 2023, the presidents of three universities— Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by …

Independent Environmental Regulator--The Transformation India Needs In Environmental Governance, Abhishek Chakravarty

William & Mary Environmental Law and Policy Review

If we look back fifty years to the Stockholm Conference on Human Environment, one of the key principles the states agreed on was Principle 17, which states, “appropriate national institutions must be entrusted with the task of planning, managing or controlling the environmental resources of States with a view to enhancing environmental quality.” This principle can be interpreted to require the creation of an independent environmental regulator at the national level for environmental regulations and governance.

In 2011, the Honorable Supreme Court in deciding Lafarge Umiam Mining Private Ltd. v. The Union of India directed the Union Government to set …

Extraterritoriality's Empire: How Self-Determination Limits Extraterritorial Lawmaking, Evan J. Criddle

Faculty Publications

In recent years, a growing number of countries have courted controversy by regulating activities outside their borders. They have used extraterritorial lawmaking to cultivate competitive global markets, strengthen or weaken data privacy, combat foreign terrorism and military aggression, promote human rights abroad, and suppress political dissent at home. This Article explores whether extraterritorial lawmaking can be reconciled with the right to self-determination under international law. I argue that the right to self-determination entitles each national polity to determine the laws and institutions by which it is governed within its territory. Extraterritorial lawmaking violates the right to self-determination when it subjects …

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

William & Mary Law Review

This Essay makes two points. The first is that originalism is not a promising path for progressive causes. The second is that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed. But instead of making these observations in the usual law review style, I’m calling on a figure out of nineteenth-century art, the Vénus Noire, to serve as our companion and guide.

This abstract has been taken from the author's introductory paragraphs.

The Demise Of Housing First Policy: The New Missouri Policy That Criminalizes Homelessness, Kaitlyn Frerking

William & Mary Journal of Race, Gender, and Social Justice

This Note examines the potential negative complications of Missouri H.B. 1606. The Note also explores possible avenues for relief through litigation or policy reform. H.B. 1606 is a Missouri state bill that altered the State’s policy towards decreasing the rate of homelessness in the State of Missouri. Prior to H.B. 1606, Missouri’s homelessness policy resembled a “Housing First” approach where emphasis was placed on providing affordable permanent housing to those without homes. With the passage of H.B. 1606, the policy turned towards supporting short-term housing initiatives and abandoned the “Housing First” approach. H.B. 1606 also contains a provision that makes …

Terrorism Should Not Be A Crime: How Political Labels Are Dangerous To American Democracy, Abigail S. Grand

William & Mary Journal of Race, Gender, and Social Justice

This Note calls for a dismantling of the United States’ current method of prosecuting terrorism, rejecting the “terrorism” label as a mechanism for charging crimes. Prosecutors should instead charge individuals in terrorism cases for their underlying criminal actions rather than rely on material support statutes and political innuendos to secure a conviction. By examining the implications of the terrorism label in post-9/11 America, this Note addresses how a moral panic enabled the executive branch to overstep its constitutional restraints and threatened the delicate balance of powers central to American democracy. Next, it proposes, as many have before, that Article III …

The Co-Optation Of Restorative Justice And Its Consequences For An Abolitionist Future, Alicia Virani

William & Mary Journal of Race, Gender, and Social Justice

This Article explores the ways in which RJ [restorative justice] has been co-opted, argues that RJ’s core principles can never coexist with the criminal punishment system, and analyzes how RJ co-optation is a barrier to abolitionist goals. It proceeds in three parts. In Part I, I present the fundamental principles upon which RJ processes should be based. While many scholars and practitioners have identified the lack of a consistent RJ definition by which to guide the work, I propose that there are fundamental principles that serve to guide RJ, and these are in stark contrast with the principles and realities …

Human Rights, Human Duties: Making A Rights-Based Case For Community-Based Restorative Justice, Aparna Polavarapu

William & Mary Journal of Race, Gender, and Social Justice

Restorative justice is often framed as an alternative to the criminal legal system, and thus justifications of restorative justice tend to be rooted in the language of the criminal system. However, this approach limits our way of thinking about the practice of restorative justice, especially non-state, community-based practices. This Article argues for an independent, rights-based justification to support these community-based practices. By offering an in-depth analysis originating from a rights-based perspective, this Article engages with two underdeveloped areas of scholarly literature and suggests a new way of thinking about the day-to-day practice of restorative justice through a human rights lens. …

The Uncertain Future Of Restorative Justice: Anti-Woke Legislation, Retrenchment And Politics Of The Right, Thalia González, Mara Schiff

William & Mary Journal of Race, Gender, and Social Justice

As diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the …

Infinite Queerness And American Settler Colonialism, Jeremiah A. Ho

William & Mary Journal of Race, Gender, and Social Justice

What the LGBTQ rights movement needs, especially with regard to legal challenges, is a lasting philosophical shift toward the idea that justice and equality are an infinite game rather than a finite and pragmatic one. This work here will explore why this posture is favorable at this moment—and generally in civil rights work. Beyond connecting queer sacrifice in recent Supreme Court cases to the functioning and maintenance of the American settler colonial project, this Article will posit why a strategy shift toward infinite thinking is increasingly necessary for more resolute work that results in the autonomy and equality of LGBTQ …

Masking Identity At Public Protests, Deborah R. Gerhardt

William & Mary Journal of Race, Gender, and Social Justice

As masks have become increasingly popular at public protests, government officials, college administrators and law enforcement are struggling with how to handle masked protesters who evade responsibility for violence and intimidation. While some wear masks to safely engage in anonymous speech, others wear them to avoid accountability for violence and intimidation.

This Article will explore these issues to assist those seeking to enact constitutionally valid mask policies. To situate today’s mask regulation challenges in the context of American history, Part I reviews events that led to enactment of anti-mask laws many years ago. Part II explains when the First Amendment …

Identity And Procedural Subordination In Lgbtq Religious Exemption Cases, Kyle C. Velte

William & Mary Journal of Race, Gender, and Social Justice

This Article proceeds in four Parts. Part I summarizes the legal literature on procedural injustice. Part II briefly describes the white Christian nationalism movement, its connection with the LGBTQ civil rights movement, and contends that it is an identity-based movement akin to traditional identity-based civil rights movements. Part III summarizes the holdings of the Religious Exemptions Trilogy [Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. City of Philadelphia, and 303 Creative LLC v. Elenis] and makes the argument that they are strongly procedural decisions. Part IV contends that the Court has engaged in identity-based …

Three's A Crowd: Addressing Discrimination Faced By Queer De Facto Parents In Child Custody Standing Proceedings, Shannon E. Callaghan

William & Mary Journal of Race, Gender, and Social Justice

In the United States, between five percent and eight percent of adults identify as queer, and as of 2020, fifteen percent of queer couples have children in their households. While recent legal victories have expanded queer rights, family law continues to lag in affording legal recognition to “nontraditional” families. This is particularly problematic for unmarried, queer co-parents who have virtually no legal claims to the children they have raised with their partners. Current standing requirements for custody proceedings treat these de facto parents as legal strangers to their children due to the absence of biological, marital, or adoptive ties. As …

The Initial Response Of Biodiversity Conventions To The Covid-19 Pandemic, Royal C. Gardner, Lauren Beames, Katherine Pratt

William & Mary Environmental Law and Policy Review

The COVID-19 pandemic disrupted the operations of global biodiversity conventions, requiring virtual meetings in place of in-person events. Yet the pandemic also highlighted the importance of biodiversity conservation as a mechanism to reduce the risk of zoonotic diseases, as the October 2020 report issued by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (“IPBES”) emphasized. Now that in-person, international meetings have resumed, this Article examines the extent to which four biodiversity conventions—the Agreement on the Conservation of African-Eurasian Migratory Waterbirds, the Ramsar Convention, the Convention on International Trade in Endangered Species, and the Convention on Biological Diversity—considered the nexus …

Expanding Emissions Markets To Reduce Agricultural Nitrogen Run-Off, Samantha Tweet, Amy Hardberger

William & Mary Environmental Law and Policy Review

Synthetic fertilizers have been critical in averting global food shortages; however, synthetic fertilizers and their production have led to numerous environmental harms, including greenhouse gas emissions, water pollution, and soil degradation.

Scientists are working on a new technology that will create a more efficient and less impactful fertilizer process, but the legal mechanisms to encourage widespread adoption and subsequent environmental benefits fall short. In the absence of regulation, market tools can encourage behavior change. If the pollution reduction by exchanging fertilizer is turned into a tradable asset, agricultural users can benefit financially, which lowers potential barriers to participation in a …

The Interpretation Of Environmental Statutory Ambiguity: A Comparative Analysis Between Ecuador And The United States, Fernando Muñoz-Dominguez

William & Mary Environmental Law and Policy Review

This Article examines through a comparative analysis the judicial interpretation of ambiguity in environmental statutes between the jurisdictions of the Republic of Ecuador and the United States of America. By analyzing the fundamental principles and doctrines guiding the interpretation of environmental laws in cases of ambiguity and vagueness in both nations, this Article draws out their inherent merits, drawbacks, and criticisms. A review of jurisprudential precedents provides a nuanced understanding of their practical applications.

In the Ecuadorian context, particular attention is given to the principles of environmental favorability, and in dubio pro natura, all of which are recognized in …

Defamation Or Impersonation? Working Towards A Legislative Remedy For Deepfake Election Misinformation, John Thayer

William & Mary Law Review

This Note explores how election deepfakes fit into the broader frameworks of defamation and impersonation law and posits that Congress and the judiciary may remedy the threat by borrowing from both areas of law. It builds on existing scholarship that has addressed the issue of deepfakes in both the electoral context as well as the general context. Furthermore, it expands upon scholars’ prior identification of these areas of law as potential avenues for regulating election deepfakes.11 It posits that solutions to election deepfakes offered by Professors Rebecca Green and Rick Hasen could go even further while still surviving constitutional scrutiny, …

The Implications Of Section 230 For Black Communities, Spencer Overton, Catherine Powell

William & Mary Law Review

Section 230 of the Communications Decency Act generally immunizes online platforms such as Facebook, YouTube, Amazon, and Uber from liability for third-party user content (for example, posts, comments, and videos) and for moderation of that content. This Article addresses an important issue overlooked by both defenders and critics of Section 230: the implications of the law and proposed reforms for Black communities in particular. By relieving tech platforms of most legal liability for third-party content, Section 230 helps facilitate Black social activism, entrepreneurship, and artistic creativity. Section 230 also relieves platforms of most legal liability for content moderation, which boosts …

Emergency Powers For Good, Elena Chachko, Katerina Linos

William & Mary Law Review

Emergency powers are widely, and justly, criticized as threats to the rule of law. In the United States, forty-three declared emergencies give the executive vast authority to exercise power unencumbered by standard legal and procedural requirements. A long tradition of executive use of emergency powers to erode civil liberties amplifies fears of executive overreach.

Yet this, we argue, is only part of the picture. We examine how emergency powers can be used for good. We argue that under certain limited conditions, political actors can legitimately invoke emergency powers to transform public policy. In addition to widely accepted requirements of crisis …

Course Schedule 2024-2025, William & Mary Law School

Course Information

No abstract provided.

Regulating Crypto Intermediaries, Eric D. Chason

Faculty Publications

Early 2024 produced a dramatic rebound in cryptocurrency markets as Bitcoin hit an all-time high price in March 2024. This surge was fueled in large part by judicial and regulatory action. After years of denials and a high-profile defeat in court, the U.S. Securities and Exchange Commission (SEC) finally approved the first exchange-traded funds (ETFs) for Bitcoin in January 2024. Many believe that these approvals will lead to a greater shift of investment funds into crypto. Crypto regulation is not, however, ready for this shift. While ETFs have clear treatment under current law, other institutions lack the same clarity or …

2024 Supreme Court Preview Digital Notebook, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Brigham-Kanner Property Rights Journal, Volume 13, William & Mary Law School

Brigham-Kanner Property Rights Journal

Property and Propriety (or A Well-Ordered Society)

October 26-27, 2023

Panel 1: Property and Propriety (or A Well-Ordered Society): A Tribute to Gregory S. Alexander

Panel 2: Equity's Role in Defining Property Rights

Panel 3: Roundtable: Emerging Issues

Panel 4: The Restatement's Impact on Property Rights

Panel 5: The Scalability of Property Rights

Note

Women's Equality Day, Wolf Law Library, William & Mary Law School

Library Book Displays

On display in the Wolf Law Library August 2024 - January 2025.

"The Law Doesn't Work Like A Computer": Exploring Software Licensing Issues Faced By Legal Practitioners, Nathan Wintersgill, Trevor Stalnaker, Laura A. Heymann, Oscar Chaparro, Denys Poshyvanyk

Faculty Publications

Most modern software products incorporate open source components, which requires compliance with each component’s licenses. As noncompliance can lead to significant repercussions, organizations often seek advice from legal practitioners to maintain license compliance, address licensing issues, and manage the risks of noncompliance. While legal practitioners play a critical role in the process, little is known in the software engineering community about their experiences within the open source license compliance ecosystem. To fill this knowledge gap, a joint team of software engineering and legal researchers designed and conducted a survey with 30 legal practitioners and related occupations and then held 16 …

Legal Support For Local Election Officials, Rebecca Green

Faculty Publications

Local election officials (“LEOs”) face enormous pressure. They must administer elections when a wide swath of the American public has grown mistrustful of their work; they increasingly face ominous personal attacks and threats; they cope with chronic underfunding of elections; and they must navigate frequent changes in the law governing elections. Lawyers provide a critical avenue of support for local election officials. They provide guidance on how to implement legislative mandates and judicial orders; they anticipate and prevent disputes from arising; and they represent election officials when they or their offices are sued—a more common occurrence today than ever. Although …

Murder On The Hearsay Trail, Jeffrey Bellin

Faculty Publications

Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature—the hearsay prohibition. The problem is that hearsay is difficult to master and somewhat dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own.

That is just the …